Eoin Ó Broin (Dublin Mid West, Sinn Fein) | Oireachtas source

This is a good conversation so maybe I will continue it a little. It is important to recognise the State already has lots of definitions in statute of what adequate housing is with respect to minimum standards, overcrowding, etc. In some senses, while we can argue whether those standards are adequate, there are some already there. For example, the State has been found to be in breach of the European Convention on Human Rights with respect to the conditions it leaves its own tenants living in, especially in council flat complexes. This is because of the very inadequate standard of such accommodation, which often does not meet the minimums the State has itself set. That is worth recognising.

It is also worthwhile to go back to one of the recent insertions on rights we introduced, namely, the rights of the child. One of the things that wording refers to specifically is the right of the child to an education. The Constitution does not say whether it is private education or public education, or whether it is funded by the household or by the State. That is not the job of the courts. The job of the courts is to say that this right is not being realised and that the Government must work out how best to do it. While I am a strong advocate of public housing, as the Senator knows, there is nothing stopping a Government saying it is going to vindicate this right through a set of measures that are about activating private sector supply. This is really about putting pressure on the Government to progressively realise and vindicate that right but the policy prescriptions are entirely a matter for the Government. The crucial thing is that the Government must act. We cannot emphasise that enough.

The Chairman asked really good questions about where this was not done in the past. Two instances strike me. At the start of the very significant upsurge in rental costs in 2014-15, Deputy Kelly was the Minister. As people will remember, he wanted to peg rents to inflation. The idea was that because inflation was relatively modest at the time, that would have allowed a certain degree of certainty and affordability for landlords and tenants. Two arguments were used by Fine Gael, which was the coalition partner of Deputy Kelly's party at the time. The first was that it did not want to negatively impact on private sector investment in the rental sector. The second was the Constitution. If we had linked all private sector rents to inflation in 2015, we would be in a much healthier position today. We would not have the spiralling rents that have gone up since that time but we also would not have the two-tier rental market where some properties have constrained rents and others do not. There is a good example of where the Constitution was used by some as an argument not to take a course of action that, with the benefit of hindsight, it would have been very wise to take.

More recently, the current Minister has said, and I have no reason to doubt him, that the advice from the Attorney General is that a ban on increases in rents in the private rental sector outside of Covid would be unconstitutional. Very eminent constitutional law professionals like Dr. Rachael Walsh of TCD have disagreed. However, if you had the right, as has been outlined by others, and you could balance that right, it could make those types of actions eminently easier and again help us to stop the rising rents at present. It is really important for those of us who have been arguing for this for a long time to emphasise it is not a silver bullet, a key to a free home or a change overnight but it is about that kind of impetus for change. While we can agree or disagree with the merits of the Government's housing plan, the Government would argue that it is doing what this constitutional right would be advocating. Therefore, it should be quite comfortable with having that right in the Constitution. Those of us who take a more critical view of Government policy can argue to the contrary but I think all of us can agree the right is crucial.

I have another point to emphasise. There is such a strong degree of consensus emerging in this meeting I do not want to break it in any way. However, it is important to emphasise that the programme for Government does not commit to a referendum on the right to housing. The wording is it commits to a referendum "on housing". I get the sense we are edging ever closer to a referendum on the right to housing. Notwithstanding some of the questions today, which were all legitimate ones, that would be a very good thing.

My last question is probably more for Home for Good, although it would be helpful if Professor O'Cinneide has a view on it. Let us put to one side the legal arguments and imagine the commission recommends we hold a referendum and gives us a wording. The big issue then is the campaign. What is the best way to convince people of the merits? Do our guests have thoughts, from their own involvement in or reflections on previous referendums, on what we would do post a positive recommendation from the commission and a positive agreement at Cabinet to move forward with a referendum? How do they think such a campaign should unfold? What would be the role of civil society versus the political parties, etc.? If there are any observations our guests would like to share with us at this stage it would be very helpful.